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A publication of the Eason-Weinman Center for Comparative Law

CIVIL LAW

COMMENTARIES

VOL. 2 WINTER 2009 ISSUE 2

Cameroon: A Mixed Jurisdiction?

A Critical Examination of Cameroon’s Legal System Through

the Perspective of the Nine Interim Conclusions of Worldwide

Mixed Jurisdictions

Stella Cziment

Cameroon is a legally complex country. Multiple legal systems have grown within its

borders as a result of a colorful past of colonization combined with custom-based law. Most

notably, common law and civil law coexist. At times, this coexistence produces two legal

systems that are at complete odds with one another because of their differing language,

constitutional backgrounds and methodologies, treatment and interpretation of laws, and

judicial training. This combination of legal systems has led some legal scholars to declare

Cameroon “two different countries in one.”1 However, at times the civil and common law

interact much like a Venn diagram, in which civil and common law overlap. When this

occurs, the civil and common law appear to be in conversation with one another, and this

intertwining of systems creates a third legal family—a mixed jurisdiction.

This paper will examine the interaction and separation of common and civil law in

Cameroon to determine if Cameroon is in fact a mixed jurisdiction; or if it is merely a civil law

system with common law transplants in the form of two Anglophone provinces. To achieve this

goal, this paper will examine Cameroon in the context of Professor Vernon Valentine Palmer’s

1 Charles Manga Fombad, An Experiment in Legal Pluralism: The Cameroonian Bi-Jural/Uni-Jural Imbroglio, 16

U. Tas. L. Rev. 209, 211 (1997).

Winter 2009 Cameroon: A Mixed Jurisdiction? 2

Vol. 2 CIVIL LAW COMMENTARIES Issue 2

nine interim conclusions of shared traits of classical mixed jurisdictions, found in his book

Worldwide Mixed Jurisdictions.2 It will examine when Cameroon is aligned with the traits shared

by classical mixed jurisdictions and analyze the reasons behind the commonalities. It will also

describe when Cameroon deviates from the traits shared by classical mixed jurisdictions and

examine the reasons behind the differences. Overall, this paper will determine whether

similarities outweigh differences and whether one can conclude that Cameroon is a true mixed

jurisdiction.

I. What Is a Mixed Jurisdiction and the Nine Interim Conclusions of Mixed Jurisdictions

Worldwide

Mixed jurisdictions exist all over the world, though they can be overlooked and

mistakenly categorized as a common law state with civil law transplants or vice versa. This

mistaken categorization occurs because the terminology “mixed jurisdiction” is relatively new.3

While many states may in fact fall into the third legal family of mixed jurisdictions, there are

fifteen states—both independent and non-independent systems—that are classical mixed

jurisdictions.4 Examples of independent classical mixed jurisdictions are: Scotland, Israel, South

Africa, and the Philippines.5 Non-independent states, states that are not self-governing countries,

are classical mixed jurisdictions as well, and include Louisiana, Puerto Rico and Quebec.6

Mixed jurisdictions share three main characteristics. First, the legal system of the mixed

jurisdiction is built on a dual foundation of both common and civil law.7 Second, this dual

foundation will be noticeable to outside observers and it will be present in the culture and

identity of the society. 8

Third, there is a common structure between the division of civil and

common law—the private law tends to be continental civil law while the public law tends to be

Anglo-American common law.9 These three characteristics are further explored and dissected in

the nine interim conclusions that this paper will be utilizing when discussing Cameroon.

The nine interim conclusions of Professor Palmer’s Mixed Jurisdictions Worldwide

outline the findings of in-depth studies of seven classical mixed jurisdictions.10

In this paper, the

nine interim conclusions operate as section headings (two of the sections have been combined)

and will be the tools utilized to best examine the Cameroonian legal system. The nine interim

conclusions will be discussed individually in different sections of the paper. The interim

conclusions this paper will be applying are: (1) The Founding of the Mixed Jurisdiction; (2) The

Cultural Voices of the Jurists; (3) The Magistrates and the Courts; (4) The Linguistic Factor; (5)

Stare Decisis and Legal Reasoning; (6) The Penetration of Common Law and Higher Forms of

2 VERNON VALENTINE PALMER, MIXED JURISDICTIONS WORLDWIDE: THE THIRD LEGAL FAMILY 5 (Cambridge

University Press 2006) (2001). 3 Id. at 4.

4 Id. at 4.

5 Id. 6 Id. 7 Id. at 7.

8 Id. at 8.

9 Id. at 9.

10 See id. at 15.



Legal Creativity; (7) Impact of Anglo-American Procedure; and (9) the Commercial Law of the

Dominant Economy.11

II. The Founding of a Mixed Jurisdiction

As diverse as all classical mixed jurisdictions are, their founding tends to follow three similar

historical tales.12

The first is intercolonial transfer between a civil law and a common law

colonial power, as was demonstrated in Puerto Rico, the Philippines, Louisiana, and South

Africa.13

Second is a merger of sovereignties, as was the case in Scotland.14

Finally, the

jurisdiction is founded “in reverse,” which includes Israel.15

Cameroon falls into the first

category, that of intercolonial transfer.

Intercolonial transfer often led to mixed jurisdictions because the colonial power

typically faced great cultural and logistical resistance when attempting to apply its own legal

system while administering the country.16

Due to a fear of an uprising or resistance to attempts to

change infrastructure and legal systems in the conquered territory, the colonial power chose to

retain aspects of original law, which typically was civil law.17

This retention formed hybrids

between the common and the civil law—usually by retaining civil law in the private sphere while

applying common law to the public sphere.18

This approach then outlasted the colonial powers

and became the modern legal system within the country.

Applying this intercolonial exchange conclusion to Cameroon, this section will examine

the colonial exchange, colonial policies and the legal development in the reunification of the

country after the end of colonization that may have enabled a hybrid to be formed between the

common and civil law.19

A. Kamerun to Cameroon: The Intercolonial exchanges

Cameroon shares a common history with other African countries. It exchanged colonial

hands many times before gaining its independence. These exchanges influenced and shaped the

present legal system, since each colonial power administering the country brought a new legal

system that became ingrained in the culture and the infrastructure of the country.20

The colonial history began in the 1500s with Portugal.21

The Portuguese stay in

Cameroon was brief due to outbreaks of malaria, but the Portuguese did leave a namesake. The

11

Id. at 76-80 (Titles of nine interim conclusions). 12

Id. at 18. 13

Id. at 19. 14

Id. at 29. 15

Id. at 30. 16

Id. at 21. 17

Id. 18

Id. 19

Id. 20

MARIO AZEVEDO, CAMEROON AND ITS NATIONAL CHARACTER 33 (Blackwell Lithographers 1984). 21

Charles Manga Fombad, Researching Cameroonian Law, Globlex, http://www.nyulawglobal.org/globalex/Cameroon.htm (June/July 2007).



Portuguese explorer Fernando Po allegedly named the country Cameroon—derived from a

Portuguese word “Camaroes” meaning shrimp. 22

After the Portuguese left it wasn’t until the

1870s that Cameroon had its second colonial claim, this time by the Germans. 23

In 1884, during the Berlin Conference, what is now Cameroon and several parts of neighboring

countries became the German colony of “Kamerun.” 24

The Germans controlled Cameroon until

combined British and French expeditionary forces defeated the Germans in Cameroon during

World War I and took control of the country in 1916.25

The British and the French split the territory of Cameroon into two uneven parts: the

British took control of two disconnected sections that they named “Northern” and “Southern”

Cameroon while France took the larger central portion, totaling four-fifths of the country.26

This

arbitrary division between the French and the British was later formally recognized by the

League of Nations. 27

On June 28, 1919 the League of Nations conferred mandates on the two

colonial powers to administer their territories, which were later superseded by trustee agreements

when the United Nations was created in 1945.28

During the administration period, the French

administered their portion of the country as part of their colony of French Equatorial Africa,

while the British administered their sections as part of their neighboring colony in Nigeria.29

Cameroon formally gained its independence from France on January 1, 1960.30

The

following year the United Nations conducted a plebiscite on February 11, 1961 in the British

territories of Cameroon.31

The Northern part of Western Cameroon (the Sadawna province)

chose to unite with the Federation of Nigeria (the Gongola State), while the Southern

Cameroonians chose to be “re-unified” with the Francophone regions of Cameroon—forming the

“Federal Republic of Cameroon.”32

Eleven years later in a referendum the federal form of the

government was changed and the two federated states of Western Anglophone Cameroon and

Eastern Francophone Cameroon were united into one: the United Republic of Cameroon.33

In

February 1984 the country took the final step in adopting its modern appearance. By presidential

decree the name “United Republic of Cameroon” was abandoned and replaced with “Republic of

Cameroon.”34

B. The Development of Cameroon’s Legal System

As Cameroon switched colonial hands the legal system within the country continually

evolved, depending on the power administering the country. During those transitions, three

major periods in the Cameroon legal system emerged: the pre-colonial, the colonial, and the

22

Id. 23

Id. 24

Id. 25

Id. 26

Id. 27

Id. 28

Id. 29

Id. 30

Id. 31

Id. 32 AZEVEDO, supra note 19, at 25. 33

Fombad, Experiment in Legal Pluralism, supra note 1, at 211. 34

Id.



post-colonial.35

These periods not only shaped Cameroon’s history but created its current bijural

legal system.

First, there was the pre-colonial period. In the pre-colonial period, the primary legal

system was customary law.36

In the North the Foulbe tribes, who had originally invaded the

territory from Northern Africa, introduced the Islamic law of Sharia, which was practiced in

large areas of the northern region.37

Different ethic groups also practiced unwritten indigenous

law in varying degrees.38

Next was the colonial period, beginning with the German colonial period of the late

1870s to 1916. When Germany administered the country as their colony they attempted to record

and codify the customary law practiced in the various regions.39

However, World War I

interrupted this effort.40

Of the six tribes studied during that period, similarities were found in

basic legal concepts and applications—one common practice was “trial by ordeal.”41

This

practice of customary law was administered by a series of ad hoc bodies typically ruled over by a

community leader: a family head, chief and chief’s council, or a quarter head.42

While

administering Cameroon, Germany created and operated two parallel systems of courts, one

exclusively for the European settlers where German law was applied, and the other exclusively

for Cameroonians where the Germans supervised the application of custom-based traditional

law.43

The second colonial period of law began in 1916 with the combined colonial

administrations of France and Britain, ending in 1960 and 1961 respectively. Under Article 9 of

the League of Nations, “full powers of administration and legislation” were delegated to these

colonial powers so they could administer the territory according to their laws and culture

(depending on local conditions).44

Under this article, British and French customs and laws—

French civil law and British common law—were exported wholesale to their respective

territories of Cameroon.45

The British colonial period that began in 1916 continued until Southern Cameroon gained

its independence in 1961. The British colonial policy was one of “indirect rule,” which allowed

for retention of customary law as long as it was not “repugnant to natural justice, equity and

good conscience or incompatible with any existing laws.” 46

During their administration, the

British chose to simply adopt the same laws and policies they were administering in their

neighboring Nigerian colonies to Northern and Southern Cameroon.47

This legal system was one

35

Fombad, Cameroonian Law, supra note 20, at http://www.nyulawglobal.org/globalex/Cameroon.htm. 36

Id. 37

Id. 38

Id. 39

Id. 40

Id. 41

Id. 42

Id. 43

Id. 44

Id. 45

Id. 46

Id. 47

Fombad, Experiment in Legal Pluralism, supra, at 214.



of separate courts based on the type of law being practiced. The Germans, on the other hand,

separated their courts based on race.48

These courts had two separate parts: one for the traditional

population, mainly native Cameroonians, and a modern sector primarily for the European

population or Cameroonians that preferred that court of law.49

English common law along with some Nigerian laws and ordinances were applied in

Cameroon through Section 11 of the Southern Cameroons High Court Law of 1958 and section

29 of the Magistrates’ Court (Southern Cameroons) Law of 1955 (SCHL).50

Both these statutes

allowed the common law practiced in England on January 1, 1900 to be exported and applied to

Cameroon.51

Most of these exported doctrines and statutes covered general applications of laws.

Additional statutes enabled the exportation of law for specific areas. For example, Section 15 of

the Southern Cameroons High Court Law applied common law to family matters, probate, and

divorce in the Cameroon High Court.52

Similarly, Section 27 enabled customary law to be

retained as long as it was not repugnant to “natural justice, equity and good conscience or

incompatible, whether directly or indirectly, with any law in force.”53

In the Cameroonian

constitutions that have followed the British colonial rule, these statutes and the application of

common law have been recognized and maintained in the English-speaking provinces as long as

the laws are not superseded by local legislation.54

While the British administered the Southern and Northern regions of Cameroon, the

French administered the rest of the country from 1916 to the Francophone Cameroonian

independence of 1960 according to their own laws and practices.55

The French colonial policy

was one of assimilation with the goal of exporting French culture and customs in order to make

Cameroon an “integral part of France” and transform the Cameroonian population into

“Frenchmen.”56

The assimilation strategy created an elite group of assimilated Cameroonians

that enjoyed higher status than the rest of society. 57

Therefore, there was a cultural and legal

distinction between this combined group of French citizens and assimilated Cameroonians and

the ordinary Cameroonians who were referred to as “subjet” (indigenous people).58

The French

applied this strategy by appointing native chiefs to local positions of power, while still keeping

them subordinate to their administrative and political officials—to ensure that only those they

trusted to further their goals would have positions of power among the Cameroonians and those

they did not trust were removed.59

The French then administered two parallel systems of courts for these two groups. 60

One

covered ninety-eight percent of the Cameroon population—the “subjets”—while the second

48

Fombad, Cameroonian Law, supra, at http://www.nyulawglobal.org/globalex/Cameroon.htm. 49

Id. 50

Id.; Fombad, Experiment in Legal Pluralism, supra, at 214. 51

Fombad, Experiment in Legal Pluralism, Id. 52

Id. 53

Id. 54

Id. 55

Id. 56

AZEVEDO, supra, at 33. 57

Id. 58



Fombad, Cameroonian Law, supra, at http://www.nyulawglobal.org/globalex/Cameroon.htm.



court was for the French citizens and the assimilated Cameroonians—the “citoyens.”61

The

French administered and presided over the traditional courts for the “subjets” in accordance to

customary law,62

retaining local chiefs or notables as assistants or assessors.63

The French

administered the second court for the “citoyens” according to French law.64

French civil law was exported from France and applied in Cameroon through a French

decree of May 22, 1922.65

The decree was supposed to extend all laws and decrees created and

enacted in France to all of French Equatorial Africa. In practice, however, French civil law was

only accessible to unassimilated Cameroonians piece-meal over time until independence in 1961

when French statutes were modified or specifically enacted for all of Cameroon.66

All the

exported French laws have remained protected in the constitution as long as not superseded by

local legislation.67

While French law was exported according to decree, the actual application of the law

took on a “trial and error” approach and faced many challenges.68

Enacted laws would be

“amended, repealed, re-enacted” or replaced.69

A specific challenge was that laws, decrees and

regulations could only be exported and executed in Cameroon by decree of the French Head of

State—a practice that meant long delays.70

At times when no special decree was given, a penal

law could not be applicable in Cameroon (unless it was locally created and enacted).71

The “post-colonial” era was Cameroon’s third phase of legal development. This phase

began at the end of the colonial trusteeships in 1960 and 1961 when Cameroon gained its

independence; however, it should be mentioned that there were earlier movements for

independence before the United Nations action.72

For example, in the Western province there

was a movement for separation from Nigeria in favor of either an independent trusteeship or

reunification with the Francophone regions of Cameroon (the French Trust Territory of

Cameroon), which failed to gain support.73

Francophone Cameroon gained its independence first

in 1960 and became the Republic of Cameroon.74

In the following year, two separate United

Nations plebiscites were conducted and the Anglophone region gained its independence and

joined the Francophone region of the country to form a federal system.75

A major obstacle in the reunification process arose on October 1, 1961, because the

lawyers entering into the process of designing and implementing a legal infrastructure were

61

Fombad, Experiment in Legal Pluralism, supra, at 215. 62

Id. 63


Id. 65


Id. 67

Id. 68

Id. 69

Id. 70

Id. 71

Id. 72


Id. 74

Id. at 25. 75

Id.



coming from drastically different legal backgrounds and training.76

The Cameroonian lawyers

from the Anglophone region had received common law training in Britain while the

Cameroonians from the Francophone regions had received civil law training in France.77

Therefore the training colored the way the lawyers interpreted and reasoned the law and

approached their judicial system— so from the beginning there was not a single accepted

understanding of law in Cameroon.78

With that challenge, two federated states were created in

Cameroon, each under the control of the Federal Ministry of Justice and retaining their own

inherited colonial legal system.79

Ten years later in 1972, Cameroon abandoned the federated two-state format for one

system of government: the “United Republic of Cameroon.”80

With this change came a new

constitution containing Ordinance No. 72/4 of August 26, 1972, which created a civilian-style

unitary system of Courts to replace the different court structures operating in two states.81

The

continuous application of both common and civil law in the two regions were mentioned, via

inference, in Article 68 of the Constitution that enabled the laws in force to remain in force as

long as not superseded or repugnant.82

Despite the unified court structure, the two legal systems

continued to operate separately.83

In the modern legal system in Cameroon, limited customary law still applies but only to

certain persons—those traditionally subject to it—and governs only a limited legal field.84

The

practical application is that it only applies to the rural populations and, even then, its application

is optional.85

In the Northern part of the country, Sharia law is still practiced and governs a large

population of rural people and personal legal matters.86

Though Cameroon has traveled a similar path of classical mixed jurisdictions by

developing its legal system through intercolonial exchange, Cameroon also shares some of the

fundamental traits of classical mixed jurisdictions in its founding. Like classical mixed

jurisdictions, there was an intercolonial exchange in Cameroon that led to the country having a

legal system built on a dual foundation of common and civil law; however, unlike classical

mixed jurisdictions, there was no retention of civil law to avoid potential conflicts or resistance

between a civil law society and common law colonial power. Civil law is retained in the region

where it was administered by the French and common law is retained in the region administered

by the English. The retention of the two systems are not related to the settlement or colonial

system of the other. Therefore, Cameroon does now have both common law and civil law within

76

H.N.A. ENONCHONG, CAMEROON CONSTITUTIONAL LAW: FEDERALISM IN A MIXED COMMON-LAW AND CIVIL-

LAW SYSTEM 20 (Centre D’Edition Et De Production 1967) (1967). 77

Id. 78

Id. 79


Id. 81

Id. 82

Id. 83

Id. 84

Id. 85

Id. 86

Id.



its borders but not as a result of an exchange of colonial powers as is the case in classical mixed

jurisdictions.

III. The Cultural Voices of the Jurists

Within mixed jurisdictions, unique legal cultures exist that are manifested in particular

jurist groups: the purists, the pollutionists and the pragmatists. The orientations of each of these

groups is aligned behind a legal perspective that is often a remnant of its colonial ancestry; and

each group fights over the fate of its legal system and its application accordingly.87

Legal purists

are jurists who strive to keep the civil law intact and true to its source, free from the

contamination of common law.88

They tend to be culturally of continental heritage or civilian

descent, and this can be by virtue of their familial or linguistic background.89

On the other side of

the spectrum are the legal pollutionists who are usually Anglo-American or English speaking

common law advocates.90

The pollutionists will push for the incorporation of common law, or

the retirement of civil law for common law, while often self-servingly unaware of the effects

their proposed legal shift will have on the culture of the society.91

Somewhere in-between those

two vocal jurist groups are the pragmatists who tend to stand for a broader cross-cultural

approach and detached perspective to the mixing of common and civil law.92

The pragmatists are

proponents of the mixed jurisdictions, seeing the mixing of the systems as an evolutionary step in

creating a richer legal system that combines the best of both legal worlds.93

They would advocate

for the “practical and functional” aspects of a legal method over a blind adherence to one legal

system.94

Finally, these groups’ orientations, along with the legal history and developments of

the country, are colored by the “fortunes and the fervor of these cultural alignments.”95

In Cameroon, these jurist groups do not appear to be present. However, there are similar

cultural alignments and tensions being played out between the Anglophone jurists and the

Francophone jurists. The Anglophone jurists, similar to pollutionists, advocate for the existence

of common law because of their legal training and colonial background, just as the Francophone

jurists advocate for the existence of civil law because of their legal training and colonial

background.96

The Anglophone and Francophone jurists in Cameroon deviate from the

classifications of purists, pollutionists and pragmatists found in mixed jurisdictions because each

group just wants to protect its legal system from the encroachment of the other, which is

naturally occurring because of Cameroon’s reunification. Both the Anglophone jurists and the

Francophone jurists would prefer their legal systems to be pure and both jurists want their legal

systems to have equal recognition and protection in the legal infrastructure, administration, and

87

PALMER, supra, at 31. 88

Id. at 32. 89

Id. 90

Id. 91

Id. 92

Id. at 33. 93

Id. 94

Id. 95

Id. at 77. 96

See generally, ENONCHONG, supra, at 20.



constitution of Cameroon.97

A. The Colonial Birth of the Francophone and Anglophone Tension

For forty-six years Cameroonians were exposed and highly influenced by the separate

colonial schemes, resulting in a strong and present colonial cultural heritage, identification and

loyalty—which is present in their desire to retain their respective legal systems and laws.98

These

administration tactics also influenced the culture and social differences between the Francophone

and Anglophone jurists. 99

Their colonial influence in the form of language, administrative

structure and court system has had a lasting effect that is “spilling over into the modern structure

of Cameroon.”100

Some theorists argue from a sociological and anthropological standpoint that

these schemes have had such a lasting impact because of cultural trends that existed in the ethnic

tribes before the colonists arrived, and the colonists were then able to effectively channel the

same hierarchies and lineage leadership found naturally in the tribe dynamics into their own

colonial efforts.101

Others argue from a geographical perspective that the vast separation of the

Cameroon population by topographical boundaries has made communication and unity difficult,

resulting in “uneven political consciousness and a lack of common political goals” and enabling

the tensions between the Anglophone and Francophone jurists to continue.102

However, no

matter the theory, the conclusion is the same: the loyalties of each group, the Anglophones and

the Francophones, developed from a separate colonial heritage.

The Anglophone and the Francophone jurists favored their own specific colonial heritages and

therefore were greatly shaped by the different colonial schemes each colonial country

employed.103

The British and the French differed because of the different goals embedded in

their colonial schemes.104

The French colonial mission was based on the goal of assimilation.105

The French administered their colonies so as to present their culture as an “object to worship”—

to turn the French culture into something that should be strived for and revered—and they

measured their progress according to their acculturation.106

The British wanted to spread British

rule and commerce so they measured their success by the economic benefits they gained from

the colony.107

While the British may have been envied for the privileges and wealth they

possessed, they did not strive to inspire a “large-scale commitment to English culture per se.”108

97

Charles Manga Fombad, Cameroon’s Constitutional Conundrum: Reconciling Unity with Diversity, Kenyan

Section of the Int’l Comm’n Of Jurists 121, (2008), http://www.icj-

kenya.org/dmdocuments/books/Ethnicity_Book.pdf. 98


ENONCHONG, supra, at xi. 100


Id. at 28. 102

Id. at 31. 103

WILLARD R. JOHNSON, THE CAMEROON FEDERATION: POLITICAL INTEGRATION IN A FRAGMENTARY SOCIETY 78

(Princeton University Press 1970) (1970). 104

Id. 105

Id. 106

Id. 107

Id. 108

Id.



B. The Post-Reunification Tension Between the Anglophones and the Francophone Jurists

In post-reunification Cameroon, tension between the Anglophone and the Francophone

jurists still influences the country’s legal and political development and the way the population

interacts. The Anglophone population viewed reunification as the “lesser of two evils” in

comparison to joining the Federation of Nigeria, but preferred outright independence, had it been

possible. 109

As a result, both parties felt forced together rather than reunited; as stated by one

writer, Susungi, “the re-unification episode was far from being the reunion of two prodigal sons

who had been unjustly separated at birth, and was more like a loveless arranged marriage

courtesy of the UN, between two people who hardly knew each other.”110

Further, it was quickly

discovered after reunification that the Anglophone region was being absorbed into a fully

functional and independent country with an existing constitution.111

The Francophone failure to

embrace the Anglophone population did not help the growing tension between the groups.112

As

stated by Alexandre-Dieudonne Tjouen, a renowned Francophone jurist and academic, “the

Anglophones, by voluntarily opting to re-unite with the Francophones in 1961, had implicitly

undertaken to unconditionally accept and adapt to all existing laws in the former East Cameroon,

and therefore have no legal choice in the matter [regarding land reform laws].”113

Ad hoc

commissions appointed to assist in reunification were composed primarily of Francophone jurists

and didn’t appear to take into account the new bijural nature of the country in the process.114

This

disinterest and lack of representation further reinforced the feeling of doubt many Anglophones

felt at the prospect of reunification with the former French Cameroon.115

The centralized legal system is highly influenced by the divide between the Francophone

and the Anglophone jurists, but the method used to control the development of the legal system

is politics.116

For example, proponents of the common law often feel politically marginalized and

lack a strong political voice; as a result, their concerns are often lost in the process of creating

uniform laws and centralized legal systems.117

The reunification has been described as a

“functional integration which has led to the restructuring of many aspects of the Anglophone

social, economic and education system in conformity with French models.”118

This feeling of

marginalization reflected in the association of re-unification as “de-identifying” the Anglophone

population.119

Now the Anglophone population demands the right to participate in the

governance of the country and wants to be protected in the country as both Anglophones and

Cameroonians.120

After the First All Anglophone Conference of 1993, groups have been formed

and mobilized in Anglophone regions, such as the Cameroon Anglophone Movement, Southern

Cameroon Restoration Movement, Southern Cameroon Liberation Front and the Free West

109


Id. 111

Id. at 218. 112

Id. 113

Id. 114

Id. at 219. 115

Id. 116

Fombad, Constitutional Conundrum, supra, at 140. 117


Id. at 217. 119

Id. at 218. 120

Fombad, Constitutional Conundrum, supra, at 123.



Cameroon Movement, that strive for equal recognition or even independence from their

Francophone opposition.121

This further deepens the divide between the Anglophones and the

Francophone population, who resist Anglophone demands and derogatorily refer to them as “les

ennémis dans la maison” (the enemies within the house).122

It is yet to be seen how this tension

will further manifest itself or eventually be resolved.

Though this cultural divide between the Anglophone jurists and the Francophone jurists

is interesting, and worthy of its own study, this is not the same cultural division as in classical

mixed jurisdictions. Unlike classical mixed jurisdictions, Cameroon does not have the same

cultural jurist groups of purists, pollutionists and pragmatists. While Cameroon does not have

these self-identifying cultural groups of jurists, similar cultural tensions shared by those jurists

exist between proponents of the common law and proponents of the civil law in Cameroon. The

Anglophone jurists and Francophone jurists do wish to retain their own laws free from the

contamination of another legal system; however, both the Anglophone and the Francophones

cannot be clearly defined as strictly purists, pollutionists, or pragmatists because sub-groups

within the Anglophone and Francophone regions seek different legal outcomes that draw from,

but do not entirely embody, their exact ideals or causes. Some Cameroonian groups want for

their law to be retained or pure from outside influence like the purists in classical mixed

jurisdictions, while other groups advocate for their legal system to extend over the country and

be implemented as the central law, like the pollutionists. Others are similar to pragmatists,

preferring to see the two legal systems become more cohesive and uniform by creating a

centralized legal system and laws that take from both the common and the civil law.

When examining Cameroon there are political movements and historical developments

that do appear to be influenced by the force of these groups, but there is no “resistance” or

similar historical period that would exactly mirror those found in classical mixed jurisdictions

that came as the result of the “fortune and fervor” of the cultural jurists.123

Though similarities

can be drawn from the plights of the Anglophone and Francophone individuals in Cameroon to

the cultural jurists in classical mixed jurisdictions, there appear to be too many differences for

this paper to conclude that this interim conclusion is fulfilled.

IV. Magistrates and the Courts

Commonly in mixed jurisdictions there is a melding of common and civil law. Typically

civil law is incorporated into an Anglo-American institutional framework.124

Because mixed

jurisdictions apply an Anglo-American common law framework, the courts are more powerful

than they are in civil law and they are unitary institutions.125

This wider scope of the courts

influences the actual substance of the civil law.126

In addition, mixed jurisdictions tend to largely

import the common law of equity into the civil law system.127

121

Id. at 140. 122

Id. at 139. 123


Id. at 77. 125

Id. 126

Id. at 78. 127

Id.



To determine if Cameroon fulfills this interim conclusion this paper will first examine the

Cameroonian courts, then the Cameroonian judiciary, and finally the treatment of judicial

independence.

A. The Cameroonian Courts

To see if the mixed jurisdiction trait of civil law being incorporated into the Anglo-

American institutional framework occurs, this paper will first describe the court system in

Cameroon and its jurisdictional designations.

First, in the ten provinces in Cameroon—the North, the Far North, the Centre, the South,

the West, the South-West, the North-West, the East, the Littoral, and the Adamawa Provinces—

common law is practiced in the West and the South-West while the rest of the provinces practice

civil law.128

As stated earlier, Cameroon offers no de jure constitutional recognition or protection

for the bijural legal system.129

This constitutional recognition or protection was not noticed when

there were two federated states in Cameroon, since each could continue to administer themselves

without the intrusion of a unitary government; however, in 1972 when the state became a

republic, the structure of the clashing legal systems became more apparent.130

In 1972, the

Cameroonian constitution attempted to organize and structure the judicial system, but it left out

any specific instruction of how the law would actually be applied in mixing common and civil

law and the effect it would have on the judicial system that the constitution was trying to

create.131

Instead, the constitution made inferences.132

The best inference was the vague language

of Article 68, which stated that “legislation applicable in the federal state of Cameroon and in the

Federated states on the date of entry into force of this constitution shall remain in force in so as it

is not repugnant to this constitution, as long as it is not amended by subsequent laws and

regulations.”133

Ever since reunification, successive constitutions have continued to indirectly

sanction the existence of both the Francophone civil law and the Anglophone common law in

Cameroon.134

Today the Cameroonian legal system is described as bijural, yet the practical

outcome of that label is that French civil law is applied in the eight Francophone provinces and

English common law is applied in the Anglophone provinces.135

In separating the legal systems, each legal system has maintained its own unique

procedures and systems.136

The Anglophone system is accusatorial and cases are appealed

mainly by way of rehearing, while the Francophone courts is inquisitorial according to civil law

procedural rules and cases are appealed by way of retrial.137

128



See Id. at 212-213. 131

See Id. at 216. 132

Id. 133

Id. 134

Id. 135


Charles Manga Fombad, Cameroonian Bi-Juralism: Current Challenges and Future Prospects, 5 Fundamina 26,

(1999). 137

Id.



Aside from the Francophone and Anglophone division, the courts in Cameroon can be

divided into two main categories: first, courts with ordinary jurisdiction and second, courts with

special jurisdiction.138

Courts with special jurisdiction address specialized matters delegated to

that court by the nature of the law or by the nature of the particular class of persons the law

addresses.139

These special court jurisdictions include the Constitutional Council and other

Administrative and Audit Courts that are not part of the typical country judicial hierarchy.140

Both of these courts were created through amendments in the fourth and final Cameroonian

constitution, written in 1996.141

Some courts with special jurisdiction in Cameroon are: the Court

of Impeachment, the Military Court, and the State Security Court.142

As of 2008, twelve years

after being passed, most of these special jurisdiction courts have still not been implemented.143

As in most Francophone and Luxophone African countries, questions concerning

constitutionality of laws are exclusively reserved for special constitutional tribunals.144

These

special tribunals tend to be quasi-administrative bodies appointed and controlled by the

president, so the reality of the tribunal is that it tends to deliver biased decisions favoring the

government.145

The Court of Impeachment is a tribunal with the authority to try the President for treason

and to try governmental ministers for political crimes such as conspiracy against the state.146

The

jurisdiction of the Military Court, located in capital Yaounde, is more vague, as civilians have

been brought before it and convicted in situations that ordinarily would have been dismissed in a

criminal court.147

The State Security Court has exclusive jurisdiction to try felonies and

misdemeanors pertaining to the internal and external security of the state.148

Courts with ordinary jurisdiction are courts with the authority to hear all matters relating

to civil, criminal or labor disputes.149

The Supreme Court has jurisdiction over the whole national

court system. Cases can be appealed up to the Supreme Court, however, that is the one court that

connects the varying courts; otherwise ordinary jurisdiction courts are highly decentralized.150

Ordinary courts are divided into two categories, those with original jurisdiction and those with

appellate jurisdiction.151

The courts with original jurisdiction have the authority to hear the case

first.152

These courts include magistrate courts that operate at a subdivision level and High

138


Id. 140

Id. 141

Id. 142

Id. 143


Charles Manga Fombad, Some Perspectives on the Prospects for Judicial Independence in Post-1990 African

Constitutions, 16 Denning L.J. 22, (2001-2003). 145

Id. 146


Id. 148

Id. 149

Id. 150

Id. 151

Id. 152

Id.



Courts that operate at a divisional level—both types of courts may cover multiple subdivisions or

divisions.153

The courts with appellate jurisdiction are the High Courts, the Court of Appeals and the

Supreme Court.154

The High Court has limited appellate jurisdiction while the Courts of Appeals,

located in the headquarters of each of the 10 provinces, function as the main appellate courts.155

The Supreme Court has exclusive jurisdiction over the country’s administrative and

institutional matters that have been appealed from lower courts, so in a sense it does operate like

an appellate court, however it will not decide the conflict but instead instruct a lower court to

resolve the matter.156

In reality however, the Supreme Court is rarely an effective tool to resolve

disputes but instead serves to frustrate or delay parties in the case because it is so backlogged

with cases that it is slow and inefficient.157

B. The Magistrates

In Cameroon the magistrates are educated according to the practices of their particular

legal system. During the colonial period this meant that legal training occurred in the country of

the colonial power—so civil law jurists were trained in France and common law jurists were

trained in England. After Cameroon became independent, in the Anglophone region judicial

candidates were appointed after years of serving as advocate, barrister or attorney to ensure

professional experience, maturity and legal awareness of the bench while the Francophone

region preferred a system of educational training followed by appointment to the bench.

However since 1972 the judicial selection process has gradually changed to take on a more

uniform civilian approach.158

In this civilian system, judicial candidates must attend a two-year

professional course to be trained in adjudication at the National School of Administration and

Magistracy (ENAM) Yaonde after completing their law degree and passing an entrance exam.159

The course and the school are structured based on a French school in Paris and the curriculum is

predominately civilian law and procedure, providing minimal training in common law for the

common law judicial candidates that attend.160

After completing the course the judicial

candidates are typically appointed to the bench. 161

In both the traditional Anglophone and

Francophone systems the executive branch determines the actual appointment after receiving a

recommendation from the Judicial Service Commission or a similar body.162

153

Id. 154

Id. 155

Id. 156

Id. 157

Id. 158 Fombad, Cameroonian Bi-Juralism, supra, at 30. 159

Id. 160

Id. 161

Fomad, Judicial Independence, supra, at 38. 162

Id.



C. The Cameroonian Constitution and the Protection of Judicial Independence

The Cameroonian constitution, like many African constitutions, is one that is highly

shaped by the country’s colonial heritage.163

Typically in African countries that adopted their

constitution from a colonial power, there are two typical constitutional formats: the British

parliamentary or Westminster model, which was designed by the Colonial Office in London, and

the Gaullist model, which was designed in Paris and based on the Constitution of the French

Fifth Republic.164

Cameroon’s constitution followed the Gaullist model.165

Judicial independence is not ensured in the constitution of Cameroon, which is a feature

of the Gaullist model.166

In Anglophone countries, judicial independence has always been

recognized and protected, beginning with the common law doctrine: the Act of Settlement of

1701.167

This act protects judicial independence by ensuring judicial personnel will not be

dismissed without the participation of both houses of parliament.168

This act was followed by

years of political protection of the judiciary, such as legislation protecting security of tenure,

fiscal independence, impartiality and freedom from executive influence, and ensured that the

judiciary remains independent.169

On the other side of the spectrum, the French approach to the

judiciary greatly differs from that of the British because it was shaped by a French history of

“obsessive Gallic fear” of judicial dictatorship—the idea of an oppressive and controlling

“government of judges.”170

This has been the perspective of the judiciary since pre-revolutionary

France, and has been reflected in subsequent constitutions.171

In the 1958 Constitution of the

French Fifth Republic a mistrust of the judiciary is expressed in Article 64, which states that the

president is the guardian over the independence of the judiciary.172

This article positions the

executive over the judiciary as its protector. The executive is also at a higher level of power.173

This power dynamic is further reinforced by the president’s given authority to control the

judiciary by appointing, transferring, promoting and dismissing members.174

Therefore, in

constitutional approaches that reflect this Gaullist model judicial independence is

compromised.175

In Cameroon, a country that applies the Gaullist model, judicial autonomy in the 1996

constitution is treated in the same manner of the French Fifth Republic Constitution—hesitant,

unresolved and contradictory.176

Article 37(2) contradictorily states that judicial power is

independent of executive and legislative influence, so judges when discharging their judicial

163

Id. at 23. 164

Id. 165

Id. 166

Id. 167

Id. 168

Id. 169

Id. at 24. 170

Id. 171

Id. 172

Id. 173

Id. 174

Id. 175

Id. 176

Id.



duties will be governed by law and their conscience.177

However, in the next article, Article

37(3) is the statement that, “president of the Republic shall guarantee the independence of the

judicial power.”178

This contradictory article creates the same power dynamic as existed in

France, enabling the judiciary to be subordinate to the control of the watchful executive.179

The

constitution is also vague regarding the nature of judicial disciplinary measures, stating only that

subsequent laws may be developed to address the judiciary.180

Having such laws created outside

of the Constitution means that not only is judicial independence threatened, but also that the

transparency of governmental action taken against the judiciary may be compromised.181

Therefore, the vague language and ambivalent attitude towards the judiciary contained in Article

37(3), raises concerns about Cameroon’s ability to ensure an independent judiciary without

undue interference of the legislature or executive.182

Applying the shared traits found in the magistrates and the courts of classical mixed

jurisdictions to Cameroon, there doesn’t appear to be any similarities. First, civil law is not

incorporated into an Anglo-American institutional framework—there are separate courts in

separate legal systems handling the common law differently from the civil law. The one

centralized court in the country, the Supreme Court, is not helpful in determining how law is

applied through any legal procedure because it is often so backlogged and ineffective that many

cases are never heard (or never reported, but this will be discussed later in the paper). Further,

the courts, the training of the magistrates and the attitude towards judicial independence tend to

reflect more civilian qualities than those found in classical mixed jurisdictions. Cameroon does

not seem to share in the same traits concerning magistrates and courts as those shared by

classical mixed jurisdictions.

V. Linguistic Factor in Mixed Jurisdictions

Language plays a vital role in the founding and the development of mixed jurisdictions,

and the treatment and retention of languages during transitions in the country reflects the policies

and attitudes towards the legal systems.183

There are five linguistic traits typical to mixed

jurisdictions. First, typically in mixed jurisdictions a fear of a massive language turnover results

in retention of original laws: the colonial powers are concerned that a change in language would

result in the population being unable or unwilling to follow or understand the new common law

statutes.184

Second, there are typically two source languages to support and maintain the bijural

system and competency in both is essential to the retention of both common and civil law.185

Third, translation of laws is vital for both systems.186

Fourth, the language of the jurist will often

177

Id. 178

Cameroon Constitution, article, 37(3) 179

Fomad, Judicial Independence, supra, at 24. 180

Id. at 34. 181

Id. 182

Id. at 30-31. 183


Id. 185

Id. 186

Id.



reflect one’s own legal and cultural orientation.187

Finally, English tends to be the lingua franca

in the mixed jurisdictions.188

In Cameroon, there are only two official languages but more than 280 indigenous

languages spoken by some 250 separate tribes within the country.189

As in many mixed

jurisdictions the two official languages are English and French.190

Approximately eighty percent

of the Cameroonian population speaks French while the remaining twenty percent speaks

English.191

The bilingual characteristic of Cameroon is and has been protected by all four of the

Cameroonian constitutions, including the current constitution under Article 1(3): “The official

languages of the Republic of Cameroon shall be English and French, both languages having the

same status.”192

Though both languages do have equal status, most official communications in

the country are conducted in French.193

Buried in the history of the four Cameroonian Constitutions is one discrepancy in the

treatment of linguistics. The 1961 French-style Constitution contains the same provision as the

current Article 1(3) protecting both official languages, however, it expressly states that in the

event of conflict in the interpretation of French and English then the French text “must

prevail.”194

This appears to be the only formal mention of a language preference in Cameroon

that still exists today, with French being institutionally and culturally favored over English.195

On

the subject of bilingual status in Cameroon, Professor Charles Fombad states, “Bilingualism in

Cameroon, because of the lack of clear-cut goals, has been more of a vain hope than a practical

fact.”196

Therefore, despite the constitutional provision recognizing the equal and official status

of both languages, in practice the dominating culture of the Francophone and the assimilation

policy of “Frenchification” has led to an asymmetrical recognition and treatment of the two

languages—where Anglophones are required to learn and be fluent in French while those in the

Francophone region do not have to learn English and, in fact, may not even understand basic

English.197

Therefore, while Cameroon does possess some of the linguistic traits shared by mixed

jurisdictions it differs on others. As in mixed jurisdictions, Cameroon is bilingual and that

bilingual status is constitutionally protected. Similarly, these two source languages support and

maintain the operation of the bijural system. English supports the common law system and

French supports the civil law system, reflecting their legal and cultural orientation. However, this

is where the similarities end. This bilingual status did not come from the same origins that are

typical of mixed jurisdictions. Unlike other mixed jurisdictions, French appears to be the lingua

187

Id. 188

Id. 189

Charles Manga Fombad, Protecting Constitutional Values in Africa: a Comparison of Botswana and Cameroon,

36 Comp. & Int’l L.J. S. Afr. 88, (2003). 190

Republic of Cameroon Constitution 191

Fombad, Comparison of Botswana and Cameroon, supra, at 88. 192

Republic of Cameroon Constitution; Fombad, Experiment in Legal Pluralism, supra, at 216. 193


ENONCHONG, supra, at 21. 195


Id. 197

Id.



franca because it is spoken by the majority of the country and is the only language that is

required to be taught in schools. Translation efforts between English and French are weak and

inconsistent, much to the detriment to the English-speakers as more official documents are

prepared or reported in French.198

Legal scholar Professor Fombad has noted that the constitution protects the bilingual

status of the country while not explicitly protecting the bijural status of the country.199

This paper

concludes that there is a connection between the treatment of the bilingual system and treatment

of the bijural system—and this sloppy treatment of the bilingual system is an indication of the

treatment and feelings towards the bijural system in Cameroon.

VI. Stare Decisis and Legal Reasoning

Legal reasoning and legal sources share a common role in mixed jurisdictions and often take on

three basic traits. First, in mixed jurisdictions, as in common law, there is judicial reliance on

past decisions and those judicial decisions are accepted as de facto courses of law.200

In three of

the mixed jurisdictions judicial decisions are even accepted as an official source of law, ranked

only behind legislation.201

Second, since judicial decisions are sources of law, the highest court

determines the law, binding all of the inferior courts by its rulings.202

Third, the legal method

takes on a bifurcated approach, allowing cases to be divided and examined as separate legal parts

with separate legal issues.203

In Cameroon, sources of law have been “significantly shaped by the dual English-French

colonial heritage.”204

The main sources of Cameroonian law are threefold: first, the constitution;

second, legislation; and third, judicial precedents and customary law.205

Though it’s not

explicitly stated, the Cameroon constitution is considered to be the supreme law of the land.206

The Constitution does state that the rulings of the Supreme Court are binding on all inferior

courts; however, this is complicated by the use of stare decisis and the judicial organization.207

A. Stare Decisis

Whether judicial precedent is treated as a source of law depends on the jurisdiction of

Anglophone common law or Francophone civil law. The civil law system in Cameroon does not

treat judicial precedent as a source of law though it is highly persuasive.208

However the common

law system treats judicial precedent differently because the English law doctrine of binding

198



PALMER, supra, at 78-79. 201

Id. at 79. 202

Id. 203

Id. 204


Id. 206

Id. 207

Id. 208

Id.



precedent or stare decisis was inherited in the Anglophone province from the general

importation of English common law.209

Though stare decisis is applied in the Anglophone region it is difficult to find examples

of its application for two reasons: first, because the majority of cases are not reported and

second, because of different interpretations of the Magistrates’ Court (Southern Cameroons)

Law 1955 statute (SCHL).

According to Professor Fombad, a leading Cameroonian legal scholar, “it is extremely

difficult to find decided cases in Cameroon mainly because they are not usually reported and one

often has to rely on the original manuscripts of the judge or the court—sometimes, these are not

available for a variety of reasons, including the fact that some are hand written.”210

Therefore,

this paper concludes that if it is not possible for cases to be publicized then it is difficult for stare

decisis to be utilized and developed, since the concept depends on access to previous cases and

judicial reasoning.

Further, another difficulty in finding applications of stare decisis, and in actually

applying stare decisis, is the conflicting interpretation of section 11 of the SCHL 1955.211

This

statute states:

“Subject to the provisions of any written law and in particular of this section… (a)

the common law; (b) the doctrines of equity; and (c) the statutes of general

application which were in force in England on the 1st day of January 1900, shall

insofar as the legislature of the Southern Cameroons is for the time being

competent to make law, be in force within the jurisdiction of the court.”212

There are conflicting interpretations of the limiting date of January 1, 1900 in section (c)

of the SCHL 1955 statute.213

Common law scholars and judges are divided over what law is

excluded by the limiting date.214

One interpretation asks if the limiting date applies to common

law and doctrines of equity or if it is limited to only statutes of general application.215

The other

interpretation is more absolute and interprets the limitation date to exclude all post-1900

common law developments—from the doctrines of equity to statutes of general application.216

Therefore, what law is recognized as an authority in a courtroom is decided on a judge-by-judge

basis. 217

Because of different judicial interpretation of section 11(c), some judges accept and cite

post-1900 English cases and statutes as authority while other judges reject those same cases and

statutes.218

Therefore, it is difficult to examine the application and use of stare decisis in

209

Id. 210

Email from Charles Manga Fombad, Professor of Law, University of Botswana, to Stella Cziment, Law Student,

Tulane University Law School (Nov. 21 12:59:00 CST) (on file with author). 211


Id. 213

Id. 214

Id. 215

Id. 216

Id. 217

Id. at 225. 218

Id. at 224-225.



Cameroon because different authority is valued differently and some authority is inaccessible

because it is unreported.

B. Legal Reasoning and Conflict of Laws

As for the legal reasoning, there is no recognition for conflict of laws.219

Typically in

mixed jurisdictions, judges presiding over a case with a civilian subject matter may fill in

discrepancies or holes in the civilian code with common law, inserting a mixture of laws in the

opinion. The judge will then address the conflict of laws and provide a justification for applying

the law to the situation when it may seem appropriate.220

However, Cameroon does not appear to

fully recognize conflicts or potential when applying laws from the common and civil systems.221

Cameroon is a country with two legal systems divided by only territorial limits.222

Civil

law is applied in the eight Francophone provinces and common law is applied in the two

Anglophone provinces and due to the lack of a functioning centralized court structure, aside from

the backlogged and ineffective Supreme Court, there is relatively no interplay between the two

legal systems.223

The result is that law is applied based on the lex forti, the forum hearing the

case, instead of the lex causae, the law that might be best for the particular dispute.224

This is

particularly worrisome in a country that allows for free movement of individuals into the

different legal territories.225

A legal protection, status, or obligation that an individual may

possess in one legal system may, in identical circumstances, be denied in the other legal

system.226

Therefore a contract formed in an Anglophone region may be breached in a

Francophone region then have the civil law applied to resolve the dispute.227

The law the

individual is accustomed to or may have built the agreement on is not acknowledged when a

conflict arising from the agreement is addressed.228

For example, in the issue of marriage, the Anglophone courts apply the principle of law

of the domicile, governed by personal law, while the civil law rule to marriages is governed by a

person’s nationality in the Francophone courts.229

Cameroon attempted to address this

discrepancy by creating a harmonized ordinance, the 1981 Civil Status Registration Ordinance,

to unify the formal and procedural elements of the received English and French law.230

However,

the half-hearted attempt to harmonize the laws left substantive holes in the ordinance such as

divorce, which was not even mentioned.231

In Lelpou v. Lelpou a Francophone marriage

219

Id. at 220. 220



Id. 223

Id. 224

Id. at 221. 225

Id. 226

Id. 227

Id. 228

Id. 229

Id. 230

Id. 231

Id.



contracted based on the civil law applied in a Francophone province, Yaounde, is dissolved in an

Anglophone province, the Buea High Court.232

In granting the divorce by applying common law

through the relevant sections of the Matrimonal Causes Act of 1973, the Anglophone court never

addressed the fact that both parties were Francophone Cameroonians and the marriage was

contracted according to civil law.233

In the reverse situation in Affaire Mme Neba nee Juliette

Bih c. Niba Aaron Such, the Francophone Douala High Court automatically applied the French

Civil Code, without acknowledging any conflict of laws, to a divorce petition of two Anglophone

individuals for a marriage created under common law.234

Similarly, in a breach of contract case, Olabi Fayez v. Compagnie Industriel

d’Automobile du Cameroun, the contract was created and performed in Douala, a Francophone

region, but it was settled in the Buea High Court because the plaintiff was based in Kumba which

is a Anglophone region so the common law was applied without acknowledging the civil law

where the contract was formed.235

Similarly, in Upper Nun Valley Development Authority v.

Bitsong Yombo Mousa, the Anglophone Bamenda High Court applied common law without

mentioning possible conflicts with the Civil Code involving a breach of contract dispute between

an Anglophone individual and a Francophone individual for a contract that was to be performed

in a Francophone region.236

In tort law there are similar conflicts in the laws being applied. For

example in Cameroon and Afric Auto v. Albert Nqafor, common law was applied as the lex fori

to an action for the tort of detinue, even though the tort occurred in a civil law province which

was also the defendant’s place of residence.237

Some legal scholars claim the conflict of laws are not acknowledged in Anglophone

courts because it is a rule that if a party wants to rely on foreign law, that party must plead that as

a fact, but if the party fails to do so then the court is bound to resolve the dispute as if it were a

domestic case—meaning if it was governed entirely by the lex fori of common law.238

In conclusion, Cameroon technically fulfills the first two traits of this interim conclusion.

First, there is judicial reliance on past decisions. Second, judicial decisions are sources of law

and do bind the lower courts. This paper cannot determine the final trait, it is unknown if the

legal method may adopt a bifurcated approach. Though Cameroon fulfills the first two traits in

theory, in practice it has demonstrated severe shortcomings. Cases are not reported, stare decisis

is applied unevenly if at all, and as examined in the previous section, cases are rarely heard by

the Supreme Court and it is unknown if the judicial opinions are reported in order for them to be

known and binding on the inferior courts. Therefore, though Cameroon may possess the majority

of the traits in this interim conclusion it does not seem to apply these traits practically.

232

Id. 233

Id. 234

Id. 235

Id. at 22. 236

Id. 237

Id. 238

Id.



VII. The Penetration of Common Law in Mixed Jurisdictions and Higher forms of Legal

Creativity

In Professor Palmer’s book, Mixed Jurisdictions Worldwide the penetration of common

law in mixed jurisdictions is a separate interim conclusion from that regarding higher forms of

legal creativity, however, in this paper both will be examined in the same section. Both are

examined together because Cameroon greatly differs from other mixed jurisdictions in both

conclusions and the reasons for this difference are connected.

First, in mixed jurisdictions it is the common law that penetrates the practice of civil

law.239

This common law penetration occurs in mixed jurisdictions through similar patterns of

judicial involvement with the same judicial justifications for their interweaving of common law

principles into the civil law system.240

This pattern is systematic—meaning that some areas of

law are proven to be more malleable than others—for example, the field of obligations tends to

be more easily influenced in civil law while personal issues such as property and family law

tends to be more resistant to common law influence.241

Second, mixed jurisdictions are more than a fusing of common and civil law elements in

one system.242

Instead, they are a venue for the creation of novel legal arguments and systems—

higher forms of legal creativity. This results from the traditional training of the judges clashing

with the subject matter that they are examining.243

These new interpretations allow for the

creation of new different laws, “amalgamations” of civil law and common law approaches and

concepts.244

Cameroon does not have the typical penetration of common law in the courtroom or in its

legislation. There is relatively no mixing between the common and civil law. As law professor

and legal scholar Professor Dickerson of Buea University explained, “The courts are different—

expect to find the lines of notaries in the inquisitorial civil law court and the judges in curly

white wigs in the adversarial common law court.”245

The common and civil law coexists, but

only through constitutional inferences.246

For that reason, the penetration of common law does

not occur in Cameroon. This lack of common law penetration affects the ability of higher forms

of legal creativity to occur as it would in mixed jurisdictions.

Higher forms of legal creativity do not appear to be present in the courtrooms or in the

legislation of Cameroon. As examined in the previous section on legal reasoning, courts tend not

to acknowledge conflicts of law in the courtroom and instead blindly apply the lexi forti.247

In the

opinion of this paper, this lack of recognition in the conflict of laws keeps the bench from

239


Id. 241

Id. 242

Id. 243

Id. 244

Id. 245

In-person Interview with Claire Dickerson, Law Professor, University of Buea/Tulane Law School (Nov. 3,

2009). 246

Fombad, Experiment in Legal Pluralism, supra, at 216 247

Id. at 221.



creating new legal arguments since they are not participating in creative problem solving by

taking from both the lexi forti and the lexi causae.

Higher forms of legal creativity do not appear to be in the legislation either. In the

opinion of some legal scholars this is because any steps toward creating new “amalgamations”

between the civil and common law only dismantle the existence of common law in Cameroon

since these new laws tend to take exclusively from the civil law or the drafters tend to be

predominately civil law jurists.248

Therefore, the creation of “new” harms the existence of

common law.249

There are many reasons behind this occurrence, but training and background of

the jurists drafting the laws tends to be a large factor.250

For example, in the formation of the first

uniform Labour Code of 1967 a French expert who participated in the drafting stated that the

code tended to be drawn from French law of December 15, 1952 simply because of the

committee’s “inability to come to grips with the intricacies of the English labour law.251

Therefore, the Anglophone region seems to be hesitant to embrace the opportunity to create new

legislation because it threatens the existence of their legal system.252

Without the presence of the

Anglophone region in the creation of new laws, the country cannot capture the dynamic nature of

its bijural system, and without this mixing of the systems it can’t create new amalgamations.

Therefore, Cameroon differs from mixed jurisdictions because there is no traditional

penetration of common law nor is a higher form of legal creativity being applied in the

courtrooms or in the legislation of the country.

VIII. Impact of Anglo-American Procedure

The eighth conclusion is that in mixed jurisdictions substantive civil law is applied in an

Anglo-American procedural system and this procedural process has an impact on the way that

civil law is practiced.253

This merging of the systems means the courtroom procedure takes on a

common law form while the substantive law being reasoned or addressed may be civil law.254

This occurs when the courts were established in an Anglo-American format then presided over

by common law trained judges, therefore it seemed natural that the use of English procedure was

adopted to the law being practiced.255

Finally, this adoption of the Anglo-American courtroom

procedure would have occurred within and by courts themselves—the courts had the power to

proclaim the rules without political or legislative oversight.256

This conclusion does not appear to be relevant in Cameroon because the Anglo-American

procedure being applied to civil law does not appear to be present. This may be due to two

factors. First, the centralized court -- the Supreme Court -- has taken on more of a civil law

248

Id. at 210. 249



Id. 252

See Fombad, Constitutional Conundrum, supra, at 139. 253


Id. at 63. 255

Id. at 65. 256

Id.



procedural process and it is unknown how common law is practiced in that courtroom format.257

Second, common law is not practiced in the Francophone or federal system and to go further,

common law or the conflict of laws is not even addressed in the courtrooms, so in common law

courts common law is practiced even if the lexi causai is clearly civil law, and vice versa.

Therefore, civil law is also not practiced in a court with an Anglo-American procedural

structure.258

IX. Commercial Law of the Dominant Economy

The malleable nature of the commercial law shared in mixed jurisdictions is the final

conclusion this paper will examine.259

All the mixed jurisdiction systems borrow Anglo-

American commercial law into a mixed jurisdiction legal system, which eventually leads to

abandonment of the continental commercial law.260

This adoption of common law in commercial

matters is justified by self-interested economic reasons along with the argument that continental

commercial law was inadequate for the changing economy.261

Therefore, this adoption tends to

be an internal decision of the mixed jurisdiction based on local business and the domestic

economy and not the result of outside influence.262

Finally, the mixed jurisdictions adopt the

content and structure of Anglo-American law as well as the larger common law unitary concept

of commercial law.263

First, Cameroon is unlike other mixed jurisdictions because Cameroon has renounced its

legislative and judicial sovereignty in matters concerning business law in order to adopt an

international treaty regulating business and commercial law—the Organization for

Harmonization in Africa of Business Law, OHADA. 264

Therefore, unlike mixed jurisdictions,

Cameroon addresses business law through the OHADA treaty.265

Though Cameroon does not resemble other mixed jurisdictions in this final section,

Cameroon’s interaction with the OHADA treaty will be briefly examined because it does speak

to some concerns shared by mixed jurisdictions. Because of Cameroon’s two differing legal

systems and its constitutional recognition of its bilingual state, Cameroon has interacted

differently with the treaty than other treaty-parties. The Anglophone provinces of Cameroon

resisted this treaty because it was originally considered an instrument of the French and

francophone neo-colonialism.266

However, OHADA scholars posit that OHADA may bridge

gaps between Anglophone and francophone systems as an “emerging tool” that could

257

Fombad, Cameroonian Bi-Juralism, supra, at 26. 258



Id. 261

Id. 262

Id. 263

Id. 264

MARTHA SIMO TUMNDE, NÉE NJIKAM, OHADA as Experienced in Cameroon: Addressing Areas of Specific

Concern to Common Law Jurists, UNIFIED BUSINESS LAWS FOR AFRICA: COMMON LAW PERSPECTIVES ON OHADA

74 (Claire Moore Dickerson ed., GMB Publishing Ltd. 2009) (2009). 265

JOHN ADEMOLA YAKUBU, Community Laws in International Business Transactions UNIFIED BUSINESS LAWS FOR

AFRICA: COMMON LAW PERSPECTIVES ON OHADA 1 (Claire Moore Dickerson ed., GMB Publishing Ltd. 2009)

(2009). 266

MARTHA SIMO TUMNDE, NÉE NJIKAM, supra, at 73.



“progressively become the common business law in Anglophone and Francophone African

countries, taking the best from the civil law and common law systems.”267

Before Cameroon adopted OHADA the country had not made an effort to modernize its

business laws.268

Cameroon, like the majority of African countries, was ambivalent on the

concept of law reform.269

Further, what weak attempts were made in Cameroon to update

commercial or business laws failed to properly represent the bijural nature of the country.270

For

example the Civil Code Commission was majority Francophone and only two of the ten

members practiced common law.271

Similarly, in the Commission on Harmonization of

Commercial Law, there was only one common law jurist on a commission of fifteen members.272

Therefore, in the absence of modern uniform commercial laws Cameroon continued to rely on

colonial laws, some of which are still in operation today.273

For example, outside of business law

that is governed by OHADA, the Anglophone provinces still continue to apply common law

doctrines of equity and pre-1900 statutes of general application via Section 11 of the SCHL 1955

along with pre-1960 Nigerian laws.274

In the Francophone provinces, French laws that were

promulgated in French Equatorial Africa before January 1, 1924 and decreed applicable in the

region later that same year were used for business and commercial law.275

Years after Cameroon

declared independence from the British and the French their laws were no longer imported into

the country, so Cameroon continued to rely on out-of-date legislation, most of which has been

abandoned in the countries where the law originated.276

Examples of such legislation would be

the Commercial Code 1807, Civil Code 1804, Sale of Goods Act 1893 and the Partnership Act

1890.277

Therefore, countries like Cameroon sorely needed a treaty like OHADA when it was

formed in 1993.278

A completely separate paper could be written on the mixed elements of the OHADA

treaty and how it interacts with societies like Cameroon that have both common and civil law

systems, however, for the sake of this subject this paper will only examine a few of the issues

relating to OHADA that interact specifically with aspects of Cameroon’s bijural system and

touch on elements of mixed jurisdictions. First is the language issue. OHADA is made up of

sixteen west and central African countries, most of which are Francophone.279

The policies and

the language of the treaty reflect the strong Francophone influence and this has been the point of

tension in the bijural bilingual state of Cameroon.280

Under Article 42, the working language to

be applied to the treaty is French.281

This is a point of tension in bilingual Cameroon where both

267

Id. at 70. 268

Id. 269

Id. 270


Id. 272

Id. 273

MARTHA SIMO TUMNDE, NÉE NJIKAM, supra, at 70. 274

Id. 275

Id. 276

Id. 277

Id. 278

JOHN ADEMOLA YAKUBU, supra, at 1. 279

Id. 280

MARTHA SIMO TUMNDE, NÉE NJIKAM, supra, at 74. 281

Id. at 72.



English and French are official languages.282

Though there is an amendment to add more

languages to OHADA, which would include English, the official OHADA documents, such as

the treaty and Uniform Acts, are to be translated from French so the French translation will

remain the authentic version and the controlling text in the case of differences in translation.283

Second, the necessary step that OHADA disputes are handled in the Common Court of

Justice and Arbitration based in Abidjan, Cote d’Ivoire has been resisted as it takes the control

out of the Anglophone courts with their culturally acceptable judges and places it in a civilian

court system with civilian trained judges.284

First, the CCJA applies civilian procedure and its

decisions are based on dossiers.285

Second, judges in the CCJA are exclusively trained under the

civil law, so the Anglophone practice of elevating accomplished barristers to the bench as judges

is not practiced and this results in many Anglophones being skeptical of the CCJA rulings and

uneager to send claims.286

In the future it would be best if common law judges could be

appointed to the bench to adjudicate on issues originating from Anglophone courts in

Cameroon.287

Currently, the concerns of the common law jurists in Cameroon are unresolved. Because

of the strong civil law influence in all aspects of the treaty, from the structure and language to the

enforcement mechanisms, the common law jurists in Cameroon do question if the treaty is

compatible with common law.288

However, proponents of OHADA, both inside and outside of

Cameroon, hope to overcome these obstacles and learn from the process. Cameroon has become

an experiment on how this treaty will interact with Anglophone legal systems.289

X. Cameroon: a Mixed Jurisdiction?

This paper examined Cameroon’s bijural legal system through the perspective of

Professor Palmer’s nine interim conclusions of Mixed Jurisdictions Worldwide. Through these

conclusions, this paper analyzed Cameroon’s legal development, infrastructure and culture to

determine if Cameroon is a mixed jurisdiction.

The first issue examined was the founding of the legal system. This paper determined that

though Cameroon’s legal system developed through a method of intercolonial change, there were

fundamental differences between the creation of the civil law and common law dual foundation

in classical mixed jurisdictions and Cameroon. Next, Cameroon differed from mixed

jurisdictions because there is no formal existence of purist, pollutionist and pragmatists cultural

jurists in the country. This paper determined that Cameroon does not have the same court system

as classical mixed jurisdictions because common and civil law is not mixed in the courtroom at

the discretion of the judges. In classical mixed jurisdictions, common law penetrates the civil law

because judges intertwine their own culture or educational background of one legal system into

282

Id. at 73. 283

Id. at 73. 284

Id. at 75. 285

Id. at 75-76. 286

Id. at 75. 287

Id. at 76. 288

Id. at 73. 289

Id. at 79.



the other. This forms novel legal arguments because typically civil law is being applied through a

common law system or common law is becoming infused in civil law. This paper concluded this

classical mixed jurisdiction infusion of common and civil law does not occur in Cameroon. Civil

law is not practiced through a common law lens and common law does not creep into the civil

law courtrooms. The laws remain separate, as do the judges, legal ideas and legal procedures.

Not only is the structure of the courts in Cameroon different from classical mixed

jurisdictions, but also so is the practice of the law—with limited and inconsistent use of stare

decisis and legal reasoning unlike that practiced in classical mixed jurisdictions. Also because

the legal systems are not mixing the legal creativity that normally flourishes in mixed

jurisdictions, this higher legal creativity is stunted in Cameroon.

Finally, the country adopted an international treaty to apply to all business law—further

differentiating itself from classical mixed jurisdictions.

Applying Professor Palmer’s nine interim conclusions it is easy to see that Cameroon is not

a mixed jurisdiction. However, what is it then? Though Cameroon does not match the shared

traits of classical mixed jurisdictions it may still be a mixed jurisdiction—just a different one,

unlike the formally recognized countries that Professor Palmer studied. Or Cameroon may in fact

be a mixed jurisdiction but one still developing and growing into itself.

Further in presenting and analyzing Cameroon, this paper has faced many obstacles and as

a result has shortcomings. Due to the developing nature of the country, cases are often

unreported, so this writer was analyzing legal reasoning and the use of stare decisis without

access to judicial opinions. Cameroon is still relatively inaccessible to the western legal world in

some ways, as this paper had to rely on one dedicated and knowledgeable Cameroonian legal

scholar, Professor Fombad, for more than half the sources cited, and many of the works prepared

by those outside the country were anywhere from ten to forty years old. This leads the writer of

this paper to wonder what information is in Cameroon, yet to be critically examined and reported

to the international legal community. Cameroon may be a different place, a different legal world,

when examined from the inside.

In the course of the research conducted for this paper, the writer has read and heard

Cameroon be declared many things—a bijural legal system, a mixed jurisdiction, a loveless

arranged marriage by the UN, two countries in one, a civil law country with common law

transplants, and a great legal experiment. This paper will add another declaration—under

Professor Palmer’s Mixed Jurisdictions Worldwide nine interim conclusions, Cameroon is not a

true mixed jurisdiction as of yet, although it may still one day grow into that potential.

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